Reviewer

Disclosure statement

Simon Rice is legal adviser to the Parliamentary Joint Committee on Human Rights.

Paula Gerber does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

BARRIE CASSIDY: Now this other issue on the UN envoy who postponed a visit to Australia because of the laws around detention centre workers, do you find that embarrassing?

GEORGE BRANDIS: Well, I’ve seen the report. I don’t know anything about the particular facts of the case. But can I just make this point to you, Barrie?: that Australia does co-operate with the United Nations in relation to our human rights obligations, in particular through my department, the Attorney-General’s Department. We are in very regular dialogue with relevant United Nations agencies who do a periodic audit of compliance by all the member states with human rights obligations and we have undertaken that exercise in my department quite recently. – Attorney-General George Brandis, speaking with host Barrie Cassidy on ABC TV’s Insiders, September 27, 2015.

At its narrowest interpretation, Brandis is correct: at a purely procedural level, it is true that Australia does comply with its formal obligations to report to the UN, and has issued an open invitation for UN investigators called Special Rapporteurs to visit.

However, taken more broadly, Brandis overstates Australia’s human rights record in relation to the UN. Australia has been widely criticised, including by the UN, for its weak compliance with substantive obligations to respect, protect and fulfil human rights.

Australia and the UN

The “UN envoy” that Insiders host Barrie Cassidy mentions is United Nations Special Rapporteur on the Human Rights of Migrants, Francois Crepeau.

To understand Brandis’ reply, we must first understand the role of a Special Rapporteur.

The UN Human Rights Council is a body established by the UN General Assembly to oversee human rights compliance by UN member countries (“states”).

A special procedures visit to a state is only by invitation, and so a request is made for an invitation from a state. Some states issue the requested invitation and some don’t. Some states have issued a standing invitation, indicating a willingness to receive visits at any time.

Co-operative but hardly a model global citizen

Perhaps because Brandis’ comment came in a live interview, his reference to “obligations” in the context of the Special Rapporteur’s visit is a little confusing. Inviting a special procedures visit is not an obligation but something that Australia can choose to do, voluntarily.

On these occasions, Australia is not breaching an obligation, but nor is it being a model international citizen.

If Brandis intended to refer to human rights co-operation that Australia is obliged to engage in under international law, then at a purely procedural level it is true that Australia does comply with its formal obligations to report to the UN (for example in the Universal Periodic Review and to the human rights treaty bodies).

Some argue that Australia has, for example, failed to facilitate the enjoyment of basic human rights because it has not legislated to guarantee rights under the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, that it fails to protect people against human rights abuses when it sends asylum seekers to third countries, and that it interferes with and curtails the enjoyment of human rights when it exercises control over Indigenous people in the Northern Territory

Verdict

Australia does co-operate with the United Nations in relation to (1) requests the UN makes to visit, and (2) procedural obligations that Australia has to report. However, there is a widely held view among key players – including the UN, Australia’s own Human Rights Commission, and international NGOs – that Australia does not comply with its obligation to respect, protect and fulfil human rights. – Simon Rice

Review

This is a fair and measured critique of the extent to which Australia is co-operating with the UN in relation to its human rights obligations. It is useful to differentiate, as the author does, between procedural and substantive compliance. Although Australia is generally compliant with its formal reporting obligations, it co-operates less with the UN now than in the past.

In the present era, the UN has found Australia in breach of the International Covenant on Civil and Political Rights and other human rights treaties 40 times since 1994. The NGO Remedy Australia found that in only 15% of these cases has the Australian Government complied with the UN’s decisions and remedied the violation.

The author correctly observes that on a procedural level, Australia could be said to be co-operating with the UN in relation to its reporting obligations. But there is significant room for improvement in our relationship with the UN, and our compliance with international human rights norms. – Paula Gerber

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